Will the US finally recognize same-sex marriages?

While Valentine’s Day has come and gone, the subject of love and marriage is still very much on the minds of many couples living in the United States. For Ijpe DeKoe and Thomas Kostura, a same-sex couple living in Memphis, Tenn., whether their marriage is even recognized by their state will be a matter of national conversation for many months to come.

Ijpe and Thom are plaintiffs in Tanco v. Haslam, a recent case selected for review by the U.S. Supreme Court. “Ijpe and Thom are very private people,” according to Maureen Holland, one of the attorneys representing them in the case. “It’s a lot for them to put their private lives out into the public, but the issue is so important for their lives and the lives of other same-sex couples that they are willing to do this,” Holland said.

Facts concerning their lives are very public. They are included in federal court documents and may be recounted in our nation’s history. But the facts read as excitingly or banally as any other couple, gay or straight. Ijpe is a full-time reservist in the Army Reserves, while Thom is a full-time student at the Memphis College of Art. Ijpe received his orders to deploy to Afghanistan in the summer of 2011, and like many couples with a partner serving in the military, they chose to formalize their commitment before his deployment. Ijpe and Thom married on August 4, 2011 in New York, and Ijpe flew to Afghanistan a week later. After a nearly yearlong deployment, Ijpe joined his spouse back in the U.S. in May 2012, and was stationed in Tennessee. When he returned, they found that their marriage did not exist to the State of Tennessee or the federal government.

According to the organization Freedom to Marry, 18 countries in the world currently recognize same-sex marriages. The United States is one of two countries (the other being Mexico) that has regional, but not country-wide, recognition of marriages involving same-sex couples. With the recent addition of Alabama in February 2015, 37 states and Washington, D.C. now allow same-sex couples to marry. Tennessee, located in the Sixth Circuit Court of Appeals, is one of 13 states that neither allows nor recognizes same-sex marriages.

On May 20, 2014, a federal judge ruled in Whitewood v. Wolf that Pennsylvania must allow same-sex marriages and recognize same-sex marriages performed out of state. However, like Ijpe and Thom, an issue for many same-sex couples married and living in the state was whether their marriages would be recognized out of state lines. A particularly interesting issue is whether same-sex married couples should continue to formally adopt their children moving forward, given that their parental custodial rights may not be recognized if their marriages are not recognized outside of the state.

Many of the 37 states that currently recognize same-sex marriages did so after the landmark decision in United States v. Windsor in 2013, where the Supreme Court overturned a significant portion of the Defense of Marriage Act (DOMA). The Supreme Court ruled that Section 3 of the Act, which defined “marriage” and “spouse” to apply only to heterosexual couples, was unconstitutional. Windsor paved the way for same-sex marriages to be recognized on the federal level for certain benefits, and it also led to a dramatic increase of same-sex marriages in the states as well.

Windsor was a positive court decision for same-sex couples, including Ijpe and Thom. After Windsor, they finally had their marriage recognized, at least on the federal level. On the military base, where Ijpe works, Thom is allowed to be covered as a beneficiary for health insurance, allowed to enter the base as a spouse of an active reservist, and allowed to enjoy the same benefits as any other spouse on the base. However, once they step off of the military grounds, their marriage is considered a “legal nullity” in Tennessee. In Windsor, the Supreme Court refused to extend its decision and rationale to require all states to grant same-sex marriages on important Constitutional grounds. Given that the Windsor decision was closely decided on a 5-4 basis, many believed that the Court would take up the larger Constitutional battle another day.

That day arrived on January 16, 2015, when the Supreme Court agreed to hear four cases involving same-sex marriage, including Ijpe and Thom’s case. The Supreme Court will decide whether the US Constitution requires a state to issue marriage licenses to same-sex couples and whether it must recognize out-of-state same-sex marriages. According to SCOTUSblog, oral arguments will occur in April, with a possible decision rendered by the end of June 2015.

“Wherever you live, this issue affects you,” stresses Holland. “Marriage is portable and should be recognized no matter where you are in the United States.” The Supreme Court may make this a certainty for all couples this summer.

Reprinted from VOICES March 2015 with permission.


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Leech Tishman

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